What can I say in an affidavit?

An affidavit is a statement of facts. Therefore, you should include all the facts that are relevant in your case. If the affidavit is accompanying an application, it is important that your affidavit supports the orders you are asking the Court to make. The affidavit must contain all of the evidence you are relying on. The Judicial Officer may not have time to hear more evidence in Court.

The length of your affidavit will depend on the complexity of your case. Your affidavit does not need to be lengthy as long as you include all the facts that you are relying on as evidence. Try and leave out things not relevant to what the Court has to decide.

What should not be included in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views. Include only what you saw and heard wherever possible, not your opinion (for example, you can include details of conversations with someone, but not what you think are the reasons they did something). The exception to including opinions is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer.

Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence). There are, however, a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court.

You should not refer to anything said or documents produced in connection with an attempt to negotiate a settlement of your dispute, as these are not admissible as evidence in Court. If you are unsure about what can and cannot be included in your affidavit, you should seek legal advice.

The judicial officer can make an order striking out any part of an affidavit that is irrelevant, or otherwise improper. This means that the affidavit is treated as if the improper parts do not exist. If you think words should be struck out of an affidavit filed on behalf of the other party, you need to state your objection in writing to the court and the other party at least 14 days before the trial.

Affidavits by other witnesses

If you are relying on evidence from a witness (not an applicant or respondent) to support your case, you will need to file a separate affidavit on their behalf. For example, you would need to file an affidavit if you want the Court to consider evidence from a family member, friend or professional. You should only file an affidavit by a witness if the evidence is relevant to your case.

Unless a court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.

Affidavits by witnesses will be discussed with the judicial officer as your case progresses. The initial stages of most family law cases focusses on coming to an agreement with the other party, as the vast majority of disputes are resolved without going to trial.

Can I give my evidence in court instead?

There is limited opportunity to give a personal account of your evidence in court. Most evidence is provided by affidavit. This allows a case to run more quickly and efficiently as all parties know what evidence is before the Court.

You must swear or affirm that the contents of the affidavit are true. When you say something in an affidavit, it is as serious as saying it directly to the judicial officer while you are in the witness box in court.

If you want a witness to give evidence, they should provide an affidavit; they can only give oral evidence instead if the judicial officer gives permission, or if the witness refuses to sign an affidavit. You may have to subpoena a witness to ensure that they attend the trial.

Attaching documents to an affidavit

If you want to rely on a document as evidence, you can attach it to your affidavit, and you must then refer to the attachment in your affidavit. Examples of such documents are a contract of sale or a child’s school report. If there is more than one attachment, you need to refer to each one by a number or letter in your affidavit and on the first page of each attachment. For example Attachment 1 or Attachment A. You also need to number the affidavit and attachments consecutively, that is, from the first page of the affidavit to the last page of the last document attached.

Practice Direction 1 of 2018 sets out limitations on the number of documents you can attach in certain circumstances.

In addition the Court will sometimes make orders limiting the number of pages of affidavits and the number of attachments.

If you go over these limits, your affidavit may not be accepted for filing.

Where there are five or more attachments to an affidavit, each must be clearly identified by tabbing.